Notice & Comment

Fifth Circuit Review – Reviewed: Olipiones and Shepherds on Stilts

This post is about the Fifth Circuit’s recent-ish decision in American Stewards of Liberty v. Department of Interior, 960 F.3d 223 (May 29, 2020) (Stewart, Dennis, Haynes) (per curiam). I’ll have more Fifth Circuit – Reviewed content coming soon, but thought this case summary read well as a standalone post.

During the relatively short time I’ve been blogging on the Fifth Circuit’s administrative-law decisions, I’ve come across several cases dealing with interesting creatures. There was, of course, the Dusky Gopher Frog of Weyerhaeuser Company v. United States Fish and Wildlife Service, 139 S.Ct. 361 (2018)fame, which I covered here. And there was the Golden Cheeked Warbler that triggered the Fifth Circuit to acknowledge that Texas is a country in General Land Office of the State of Texas v. U.S. Department of the Interior, No. 19-50178 (5th Cir. 2020). I covered that development, which I still can’t believe didn’t make more headlines, here and here.

This case involves another animal that I’ll bet you’ve never heard of: The Bone Cave Harvestman. Now why am I so confident you’ve never heard of the Bone Cave Harvestman? Well, they don’t get out much. And while I know that’s true of everybody these days, it has been true of the Bone Cave Harvestman for a long time. As the Fifth Circuit put it

Interesting side note: The Bone Cave Harvestman is an arachnid but not a spider. Apparently, “[a]lthough harvestmen bear a superficial resemblance to spiders, they are actually a distinct order of arachnids knows as Opiliones.” The Court says it’s a “superficial resemblance,” but if you introduced your buddy and he looked like this …

… I’d tell you your buddy’s a spider – 100%. Anyway, if you’re interested in more information on Opiliones, may I introduce you to my friend, Wikipedia, who helpfully explains that

Although superficially similar to and often misidentified as spiders (order Araneae), the Opiliones are a distinct order that is not closely related to spiders. They can be easily distinguished from long-legged spiders by their fused body regions and single pair of eyes in the middle of the cephalothorax. Spiders have a distinct abdomen that is separated from the cephalothorax by a constriction, and they have three to four pairs of eyes, usually around the margins of the cephalothorax.

If you keep reading, you’ll learn that some Opiliones have come to be known as “shepherd spiders in reference to how their unusually long legs reminded observers of the ways that some European shepherds used stilts to better observe their wandering flocks from a distance.” Who knew? But I digress.

In 2014, a non-profit group and several individuals filed a petition with the U.S. Fish and Wildlife Service (part of the Department of the Interior) calling for the Bone Cave Harvestman to be taken off the federal endangered species list, which, if you’re curious, is available for inspection at 50 C.F.R. 17.11(h). After reviewing the petition, FWS issued a negative “90-day finding,” which is a summary denial based on the agency’s conclusion that the petition did not present sufficient scientific or commercial evidence indicating that delisting was warranted.

Some of the petitioners (collectively, “the Original Plaintiffs”) filed an APA action in federal district court, challenging FWS’s negative 90-day finding as arbitrary and capricious. While the case was pending, the district court allowed one individual and a county to intervene to separately argue that federal regulation of the purely intrastate species is unconstitutional because it exceeds Congress’s power under the Commerce and Necessary and Proper Clauses.

The district court ultimately rejected the Intervening-Plaintiffs’ constitutional arguments but granted summary judgment to the Original Plaintiffs, concluding that FWS had erred by demanding a higher quantum of evidence than was statutorily required for a 90-day finding. The court vacated and remanded FWS’s negative 90-day finding, and FWS proceeded to issue a positive 90-day finding and began a more probing 12-month review to determine whether the Bone Cave Harvestman should remain listed.

The Intervening Plaintiffs appealed the denial of their motion for summary judgment, arguing that the Fifth Circuit retained jurisdiction to hear their separate constitutional arguments for delisting the Bone Cave Harvestman. The Fifth Circuit held their appeal was nonjusticiable either because it was moot in light of the district court’s order vacating the FWS’s negative 90-day finding or because it was barred by sovereign immunity. The mootness problem is fairly self-explanatory unless you don’t understand mootness. If that’s the case, have I introduced you to my friend Wikipedia? The alternative ground–sovereign immunity–requires a bit more explanation, which I provide next.

In cases against the federal government, including those against federal agencies, “the United States is immune from suit unless it consents, and the terms of its consent circumscribe our jurisdiction.” Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997). Thus, the Intervening Plaintiffs’ lawsuit could proceed only if they were able to trace their alleged injury to an action by the federal defendants that federal law allowed them to challenge, and even then only if they brought the action within the time period that federal law allows for such a lawsuit.

The APA allows “a[ny] person … adversely affected or aggrieved by agency action” to obtain judicial review. 5 U.S.C. 702. Courts have held this provision waives sovereign immunity specifically for challenges to final agency decisions. See, e.g.Dunn-McCampbell, 112 F.3d at 1287. To fall within this waiver, however, a challenge must be brought within six years of the final agency action allegedly causing a plaintiff’s injury.  That limitation derives not from the APA itself, which contains no statute of limitation, but instead from general six-year statute of limitation for civil suits against the U.S. that applies to APA claims. See 28 U.S.C. 2401(a).

As a result, to challenge an original agency action adopting a regulation like FWS’s listing of the Bone Cave Harvestman, the Intervening Plaintiffs had to sue within six years of the publication of the rule. In this case, that meant by no later than some time in 1999 (6 years after FWS’s promulgation of the 1993 rule listing the Opilione in question). There is an exception, however. In the Dunn-McCampbell case mentioned above, the Fifth Circuit held that a plaintiff who misses this window may still obtain review of the regulation by suing within six years of a later final agency action applying the regulation to that plaintiff. Dunn-McCampbell, 112 F.3d at 1287 (“[A]n agency’s application of a rule to a party creates a new, six-year cause of action to challenge to [sic] the agency’s constitutional or statutory authority.”). Other federal appellate courts recognize a similar rule. See, e.g.Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991); Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147, 152 (D.C. Cir. 1990).

The Intervening Plaintiffs argued that, by denying the petition to delist the Bone Cave harvestman, FWS engaged in a new final agency action that reaffirmed the validity of the listing and restarted the clock on the six-year statute of limitations to challenge the listing. The Fifth Circuit rejected that argument:

That was enough to resolve this case, but I have a question about the Dunn-McCampbell rule for readers. Recall that the FIfth Circuit described the holding as permitting a plaintiff to challenge a regulation under the APA outside the six-year limitations period if they do so “within six years of a later final agency action that applies the regulation to the plaintiff.” (emph. added). Now imagine this scenario: Bob and Sal own land containing caves that have Bone Cave Harvestman. Bob petitions FWS to delist the Harvestman, complaining that because of its continued listing he cannot develop his property without obtaining take permits and must take costly affirmative steps to preserve the species. Sal is suffering from the same burdens to his property that Bob is, but he neither joins Bob’s petition nor files one of his own.

FWS eventually denies Bob’s petition. Bob has had enough of this mess and decides he’s not going to pursue a lawsuit in federal court challenging that final agency action. Sal, however, now wishes he had petitioned himself and decides he wants to press on and continue fighting. He asks Bob’s lawyer if he can bring the federal lawsuit Bob doesn’t want to bring. The lawyer says yes. After all, FWS’s denial of Bob’s petition harms Sal just as much as it does Bob. As such, the lawyer reasons, Sal is “a person … adversely affected or aggrieved by agency action” and therefore has standing for the same reasons Bob does. See 5 U.S.C. 702.  Should Sal’s case be allowed to proceed in federal court? Let me know what you think.

Cross-posted at

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